Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1887-02-09
Nudge Hughes's Opinion on the COu-
n0u-DepOSif Order.

Messry. Ayers and Royal, published yester.
day
United States Circuit. Court al Richmond,
February 7, 1OS7-0pinion Of Judge H1ghes
on a motion to repeal Rule Of this Court.
At the trial of the case of Middleton rs.
Ed,nunlds. Treasurer, ct ais, in this court on
the Goth of December last, witness was pull
on the stand By the defence for the purpose
of proving generally that spurious coupons
purporting to be interest certificates issued
by Virginia were in existence, and that some
of them could be seen in one of the offices IN
the basement story of the Capitol at Rich.
mond. Plaintiffs counsel moved to reject
this evidence as irrelevant. and the court
did rule it out but held that it would be
competent for the defence to prove atiirma'
lively that the coupons which had been ten
dered by Middleton were spurious. 1t was
complained, on behalf of the defence. that
these coupons were not in court. and the
nlaintiff had not been required to have them
there. The Judge said that this evil could
be obviated in future by rule of practice
recurring the fling of coupons that had been
rendered for taxes with the clerk before trial
in all cases like that under trial. No oblec-
ton was then made to this treatment OF the
subject and, on the next dag, the court ca
nero motu entered the following rule OF
court:
"Ordered, That the following special rule
of practice be adopted: In all actions OF
trespass or trespass on the case hereafter
brought against any treasurer or other col
lector of taxes, debts, dues, and demands
due the State of Virginia for levying upon
and selling the property after tender OF
the States coupons receivable for such taxes,
4 l1 h0l
be issued in such action until the plaintiff
shall file with the clerk OF this court the
coupons and money which were rendered in
payment of the tax, debt, due, or demand
for which the levy and sale was made, as
recitei in this declaration And the clerk
shall at once deposit the said coupons and
money in the First National Bank of Rich
mond for safe keeping. so that the same
NAV be forthcoming to be used as evidence
upon the trial, and to be thereafter disposed
of IS the court may direct"
Motion is now pending for repeal of this
rule, and will state the reasons why think
the motion should be denied.
A taxpayer of Virginia may pay his taxes
due the State with coupons issued under the
funding act of 1871 and the laws amending
that act authorizing the like use OF coupons.
There is no law upon the statute books of
Virginia authorizing the reissuDg of cou
pons which have been once used for the
oayment of dues to the State. Therefore,
when once thus used, the coupon becomes
absolutely and forever fnnctuS oNcio in this
respect, the coupon is unlike ordinary mo-
new in circulation which is the subject CT
ordinary tender.
When the coupon is rendered in payment
of tax, if the officer refuse to receive 1t,
then the taxpayer has one of two courses
10 pursue ~ He may stand upon his ten
der. in which case the coupon has performed
its function and ceases to be available for
the payment of any other tax or ~ ne
NAV elect to treat his tax rs not paid, in
which event he is at liberty to hold or dis
pose of the coupon as he may think pro
per.
If he stand upon his tender, and the Off
Ger make levy upon his property for the
purpose of thus collecting the tax, the officer
commits treapass, and an action will be
entertained in this court for the damage to
which the taxpayer may have been subject
ed. The plaintiff stands npon his tender,
and the court treating the tax as having
been paid by the tender of the coupons, sus-
tains the action for damages. Both the plain
tiff and the court proceed upon the princi-
pie that the tax has been paid by the ten.
der of the coupon. They both proceed
upon the principle that the coupon has been
used in discharge of Che tax, and by having
been so used, has become fuactNS oWcio. If
the taxpayer after rendering coupons,
treats it as still valid for uses for which 1t
has been available before the tender, and
uses it or allows it to be used in tender for
other taxes, he abandons his original tender,
or else he lends himself to fraud upon the
Treasury of the Commonwealth. All that
has been said results from the fact that un-
der the laws of Virginia relating to coupons,
and from the nature of the case, the coupon
can be honestly used but once in the pay
ment OF taxes.
The general law of tender is in harmony
with the law applicable to coupons. Neither
at common law, nor in equity nor in adj
miralty, can plea OF tender avail unless
the defendant place the court in possession
of the money which he protests that he has
rendered. The Supreme Court of the
United States had no thought Of aboishiDg
this well-settled rule of tender when it
said. in Greenho,c as Poiaderter, III United
States 279-1SS0, 1881, and 1882. after a
tender Of such coupons by taxpayer in
payment of taxes, and a refusal BY tax.
collector to receive them, the situation and
rights OF the taxpayer anu coupon noiueI
are precisely what they would be if he had
made like tender in gold coin, and it had
been refused
Let us see. therefore, what that situation
would be- If the taxpayer had rendered
gold, and the State had refused to receive
it, and proceeded by suit against him to re-
cover the tax, then in his plea of tender he
would have to aver that "he has always
been ready to pay the tax, and before the
commencement of the action, rendered the
amount of it in gold coin to the plaintiff;
and now brings the money into court ready TO
be paid to the plaintiff" No plea of tender
is coed in an action at law unless it contains
these averments, and unless the money be
actually brought into court.
-Equi!aS sequit,r legem. A chancery
court would cease to be q court OF equity if
after party's acknowledging a debr by q
tender it should not "foiow the law" and |
roonira the monev rendered TO be mad |